Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/550)

V LAND PLASTERING GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 15 MARCH 2022

Application for approval of the V LAND PLASTERING GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the V LAND PLASTERING GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for the approval of an enterprise agreement between the V Land Plastering Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors. The dispute was heard in the Fair Work Commission, a federal body with jurisdiction to resolve workplace disputes and approve enterprise agreements. The union sought approval of the agreement, which was opposed by the employer on various grounds, including concerns about the agreement's compliance with the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act. Specifically, the employer challenged the agreement on the grounds that it did not fairly reflect the bargaining positions of the parties, and that certain provisions were not in the best interests of the employees. The Commission had to consider whether the agreement met the "better off overall test" and was made in good faith, without coercion.

In reaching its decision, the Commission considered the evidence presented by both parties and the legal framework governing enterprise agreements. It found that the agreement was made in good faith and that the union had genuinely sought to reach an agreement with the employer. The Commission also determined that the agreement fairly reflected the bargaining positions of the parties and was in the best interests of the employees. The employer's concerns about certain provisions were addressed by the Commission, which concluded that the agreement complied with the statutory requirements. As a result, the Commission approved the enterprise agreement.

The final orders of the Commission included the approval of the V Land Plastering Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023, with specific conditions and clarifications to ensure compliance with the Fair Work Act. The employer was required to provide written notice of the approved agreement to all affected employees, and the union was directed to provide a copy of the agreement to the Fair Work Ombudsman. The agreement was to take effect from the date of the Commission's decision and remain in force until its expiry date of 30 June 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established